Case 1:14-cv-00254 Document 195 Filed in TXSD on 03/12/15 Page 1 of 6

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
__________________________________________
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STATE OF TEXAS, et al.
)
)
Plaintiffs,
)
)
No. 1:14-cv-254
v.
)
)
UNITED STATES OF AMERICA, et al.
)
)
Defendants.
)
__________________________________________)
DEFENDANTS SUPPLEMENT TO EMERGENCY EXPEDITED MOTION TO STAY
Defendants file this supplement to their Emergency Expedited Motion to Stay the Courts
February 16, 2015 Order Pending Appeal (stay motion) [ECF No. 150], to inform the Court
that today they will seek a stay of this Courts preliminary injunction before the Fifth Circuit in
light of the urgent circumstances and critical federal interests at issue, including Defendants
need to protect national security, public safety, and the integrity of the border. Defendants also
wish to assure the Court that they take very seriously the Courts March 9, 2015 Order and will
be prepared to address fully the issues identified therein at the hearing scheduled for March 19,
2015.
Defendants understand that the Court has questions about Defendants March 3 Advisory,
which notified the Court that, between November 24, 2014, and the entry of the preliminary
injunction on February 16, 2015, U.S. Citizenship and Immigration Services (USCIS)
approved three-year terms of deferred action and employment authorization for requests
submitted pursuant to the 2012 Deferred Action for Childhood Arrival (DACA) policy, which
has not been challenged in this case. The 2014 Deferred Action Guidance at issue in this case

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principally expands the classes of individuals who are eligible for deferred action beyond those
covered by the 2012 DACA policy. It also provides for a three-year duration of deferred action,
including for individuals applying for deferred action under the 2012 DACA guidelines.
The November 24, 2014 effective date of the three-year period, including for individuals
applying for DACA under the 2012 guidelines, is set forth in the Secretarys Deferred Action
Guidance, which states on page 3 that the change from two- to three-year grants would be
effective November 24, 2014. Deferred Action Guidance at 3 [ECF No. 38-7; ECF No. 1, Ex.
A]; see id. at 3-4 (Beginning on that date, USCIS should issue all work authorization documents
valid for three years, including to those individuals who have applied and are awaiting two-year
work authorization documents based on the renewal of their DACA grants.). On January 30,
2014, Defendants also submitted a declaration stating that [t]he 2012 Napolitano Memo
directed USCIS to issue two-year periods of deferred action under DACA. Pursuant to the
November 20, 2014 memo issued by Secretary Johnson, as of November 24, 2014, all first-time
DACA requests and requests for renewal now receive a three-year period of deferred action.
Decl. of Donald W. Neufeld (Neufeld Decl.) 12 n.6 [ECF No. 130-11]. In addition, the
frequently asked questions (FAQs) on USCISs public website regarding the 2012 DACA
program stated that grants of deferred action under 2012 DACA would be issued for a term of
three years following issuance of the November Guidance. See Ex. B to Neufeld Decl. at 2 (If
USCIS renews its exercise of discretion under [2012] DACA for your case, you will receive
deferred action for another three years.).
Defendants also informed the Court that USCIS does not intend to entertain requests for
deferred action under the challenged policy until February 18, 2015, and even after it starts
accepting requests, it will not be in a position to make any final decisions on those requests at

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least until March 4, 2015. Mot. for Extension at 3 [ECF No. 90] (emphasis in original). These
and similar statements reflected that USCIS would not consider or grant DACA to the expanded
class of individuals eligible under the challenged 2014 Deferred Action Guidance (hereinafter,
2014 DACA) before these dates. The claims of irreparable harm in this case pertained to the
expansion of deferred action to individuals newly eligible under 2014 DACA. Defendants
statements thus addressed the effective dates for 2014 DACA i.e., when a larger group of
individuals would be eligible to apply for and receive DACA not the effective date for the
change in duration of deferred action grants pursuant to the unchallenged 2012 DACA, an issue
that was not the subject of Defendants focus at the time those statements were made.
Because the Courts preliminary injunction bars implementation of the 2014 Deferred
Action Guidance in full, and because that Guidance provided for three-year grants of deferred
action as of November 24, 2014, to 2012 DACA requestors, Defendants ceased providing threeyear grants of deferred action to such requestors immediately after entry of the injunction on
February 16, 2015. See ECF No. 176. Defendants filed the March 3 Advisory to ensure that
prior filings had not created inadvertent confusion about the three-year grants to 2012 DACA
recipients and so that the facts were abundantly clear to the Court, as well as to provide the
approximate number of three-year grants issued before the injunction. See ECF No. 176.
Defendants note that the three-year, rather than two-year, grants of deferred action under
the 2012 DACA eligibility guidelines have no immediate effect, because the individuals
receiving three-year grants of deferred action would in any event have received two-year grants
under the 2012 DACA policy. In addition, the vast majority of individuals who received the
three-year grants applied for deferred action before the Guidance was issued, and all of the
requests were filed under the 2012 DACA guidelines. Those individuals also are only in the first

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year of the deferred action period; it will be nearly two years before the third year of the grant
period is even implicated.
Defendants recognize that this Court has deferred a ruling on their stay motion in light of
the matters referred to in the Courts March 9, 2015 Order, including Plaintiffs discovery
motion. Defendants respectfully maintain that Defendants March 3 Advisory and Plaintiffs
discovery motion do not bear on the resolution of Defendants motion for a stay of the
preliminary injunction order. Specifically, the pre-injunction three-year grants of deferred action
to requestors under the 2012 DACA policy are immaterial to whether Plaintiffs have standing,
whether they are likely to prevail on the merits, whether they stand to suffer irreparable injury
during the pendency of the appeal if a stay is granted, and whether the balance of equities
supports a stay. All the individuals identified in Defendants March 3 Advisory received
deferred action under the eligibility criteria established in the 2012 DACA policy, which
Plaintiffs do not challenge in this case. Further, the three-year (as opposed to two-year) preinjunction grants of deferred action have no present effect under Plaintiffs theories of harm (and
will not have any differential effect for nearly two years), and are thus irrelevant to the
preliminary injunction and stay analyses.
Defendants assure the Court that they will be ready to address fully the Courts Order
regarding the March 3 Advisory and Plaintiffs motion for discovery at the hearing on March 19.
Defendants in no way intended to obscure the fact that DHS already was implementing the threeyear duration of deferred action for individuals applying under 2012 DACA, pursuant to the
Secretarys Guidance, and submitted the March 3 Advisory to the Court to ensure clarity on that
point. Defendants regret any confusion that may have resulted from their focus on the February
18, 2015 and March 4, 2015 dates in their statements to the Court. Nevertheless, because any

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further delay in reaching a final resolution of their stay request will compromise the significant
government interests set forth in Defendants stay papers, including Defendants efforts to
protect national security, public safety, and the integrity of the border, Defendants have
concluded that they must now seek emergency relief in the Fifth Circuit to protect those interests.
Dated: March 12, 2015

Respectfully submitted,

KENNETH MAGIDSON
United States Attorney

BENJAMIN C. MIZER
Acting Assistant Attorney General

DANIEL DAVID HU
Assistant United States Attorney
Deputy Chief, Civil Division

KATHLEEN R. HARTNETT
Deputy Assistant Attorney General
DIANE KELLEHER
Assistant Branch Director
/s/ Kyle R. Freeny
KYLE R. FREENY (Cal. Bar No. 247857)
Attorney-in-Charge
Civil Division, Federal Programs Branch
U.S. Department of Justice
P.O. Box 883, Washington, D.C. 20044
Tel.: (202) 514-5108 / Fax: (202) 616-8470
Kyle.Freeny@usdoj.gov
Counsel for Defendants

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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Supplement to Emergency
Expedited Motion to Stay has been delivered electronically on March 12, 2015, to counsel of
record via the Districts ECF system.

/s/ Kyle R. Freeny

Counsel for Defendants